Defendant appeals by leave granted the trial court?s orders denying its motions for
summary disposition of plaintiffs? claims for negligence and fraudulent misrepresentation. We
reverse.

I
Defendant first argues that the trial court erred by denying its motion for summary
disposition of plaintiffs? negligence claim. We agree. Decisions regarding summary disposition
are reviewed de novo. Schmalfeldt v North Pointe Ins Co, 469 Mich 422, 426; 670 NW2d 651
(2003). To the extent this issue involves questions of law regarding the applicable limitations
period, it is reviewed de novo under MCR 2.116(C)(7), while the existence of a material factual
dispute is reviewed de novo under MCR 2.116(C)(10). Wickings v Arctic Enterprises, Inc, 244
Mich App 125, 146-147; 624 NW2d 197 (2000). In reviewing a decision regarding a motion for
summary disposition under MCR 2.116(C)(10), we consider the evidence in the light most
favorable to the nonmoving party to determine whether there is a genuine issue of material fact
for trial. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003).
The applicable limitations period for plaintiffs? negligence claim is three years.1
However, where the discovery rule applies, a claim does not accrue for purposes of the

1 The pertinent statutory language is presently codified at MCL 600.5805(10) and provides that
the limitations period ?is 3 years after the time of the death or injury for all other actions to
(continued?)

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limitations period until a plaintiff discovers, or with the exercise of reasonable diligence should
have discovered, (1) an injury and (2) the causal connection between a defendant?s breach of
duty and the injury. Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 78;
592 NW2d 112 (1999). The test to be applied in deciding when a cause of action accrues ?is an
objective one, based on objective facts, and not on what a particular plaintiff subjectively
believed.? Id. Also, under the discovery rule, the limitations period begins to run if the plaintiff
is aware that there is a ?possible cause of action? against the defendant, i.e., when the plaintiff
?is aware of an injury and its possible cause.? Moll v Abbott Laboratories, 444 Mich 1, 22-24;
506 NW2d 816 (1993). It is not required that a plaintiff be able to prove each element of the
cause of action before the limitations period begins to run. Jackson Co Hog Producers, supra at
78.
Plaintiff asserts that the discovery rule applies in this case. Assuming, without deciding,
that the discovery rule applies to the claim at issue, there is no basis in the evidence to
reasonably support a finding that plaintiffs filed their complaint within the three-year period
under the discovery rule. In Jackson Co Hog Producers, this Court considered whether the
plaintiffs knew or should have known more than three years before filing their action involving
alleged harm due to ?stray voltage? that ?they had suffered an injury and the possible causal
connection between their injury and [the] defendant?s breach.? Jackson Co Hog Producers,
supra at 76, 78. In concluding as a matter of law that the limitations period in that case began to
run more than three years before the plaintiffs filed their complaint, this Court stated:
[V]iewing the evidence presented by the parties in the light most favorable
to plaintiffs, we conclude that before October 1990 [three years prior to the filing
of the plaintiffs? complaint] plaintiffs were aware, or at least should have been
aware, that they were suffering damages as a result of stray voltage. Although
plaintiffs might not have understood with any degree of specificity the technical
aspects of stray voltage, the evidence reveals that they did know, or should have
known, that electricity supplied by defendant was potentially harming their
animals and, in turn, causing their production to suffer. Further, even if plaintiffs
believed that the steps that they had taken to alleviate the problem were
successful, the continued production problems should have alerted plaintiffs to the
possibility that the electrical problem was not entirely corrected. Accordingly, the
trial court did not err in concluding that sometime before October 1990, plaintiffs
knew, or should have known, that stray voltage was causing them injury. [Id. at
80-81 (emphasis added).]
Accordingly, we conclude that, for purposes of the discovery rule, it is sufficient to start
the limitations period for a negligence claim based on problems with electricity supplied by a
defendant that a plaintiff owner or operator of a livestock operation has a particular reason to
believe that problems with electricity supplied by the defendant are harming the plaintiff?s
livestock. Critically, as applied to this case, this means that whatever differences there are
between ?stray voltage? and ?poor power quality,? they are immaterial to the determination of

(?continued)
recover damages for the death of a person, or for injury to a person or property.? This language
has been codified in different subsections of MCL 600.5805 at various relevant times.

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when the limitations period began to run because the discovery rule would be satisfied by
plaintiffs having knowledge from which they should have identified defendant?s electricity as a
potential cause of harm to their cows, regardless of the specific means by which the electricity
may have done so. Indeed, it is reasonable to presume that an investigation of potential harm
from defendant?s electricity triggered by ?stray voltage? concerns should also have uncovered
any ?poor power quality? problems, so that information suggesting a significant potential for
concern about the former problem would provide sufficient notice to plaintiffs of poor power
quality problems for purposes of triggering the discovery rule.
Viewing the evidence in the light most favorable to plaintiffs, there is no basis for
concluding that the discovery rule would prevent their complaint from being barred by the statute
of limitations. Defendant presented uncontradicted evidence that plaintiff Brian Bellville
attended a seminar in 1994, considerably more than three years before the filing of plaintiffs?
complaint in 2001, and expressed a concern about stray voltage on plaintiffs? farm at that time.
This establishes that plaintiffs2 had an actual concern about potential harm from defendant?s
electricity at that point. Plaintiffs also indicated in answers to interrogatories that they first
noticed harm to their cows that they attribute to power quality problems, including health
problems and loss of production, in the ?[e]arly 1990s.? Any reasonable consideration of these
uncontroverted facts requires a conclusion that, like in Jackson Co Hog Producers, supra, more
than three years elapsed between the point when plaintiffs knew that defendant?s electricity was
a potential cause of the alleged problems and the filing of their complaint. That defendant may
have denied the existence of a stray voltage problem does not negate plaintiffs? knowledge that it
was a potential cause of harm to their cows. Thus, assuming that the discovery rule applies to
plaintiffs? negligence claim, it would not save that claim from being barred by the statute of
limitations.
Likewise, plaintiffs? alternative argument regarding the continuing wrongful acts doctrine
does not save their negligence claim from the statute of limitations. This Court rejected the
alternative argument of the plaintiffs in Jackson Co Hog Producers that the continuing wrongful
acts doctrine may be applied to avoid the statute of limitations in that case because the stray
voltage had persisted for years and continued to plague the plaintiffs? facilities. Jackson Co Hog
Producers, supra at 81-82. Importantly, this Court noted ?that Michigan courts have not
recognized a cause of action for continuing negligence.? Id. at 82, citing Horvath v Delida, 213
Mich App 620, 627 n 2; 540 NW2d 760 (1995). This rejection of a cause of action for
?continuing negligence? can only be understood to mean that a failure to correct a negligently
created condition that has already started to cause recurring problems for a particular plaintiff
cannot be considered to involve independent tortious acts so as to provide a separate basis for a
negligence claim by the plaintiff or to support application of the continuing wrongful acts
doctrine. Thus, plaintiffs? allegations related to defendant failing to maintain or upgrade its

2 Plaintiff Nancy Bellville must be deemed to have the relevant notice and knowledge reflected
in plaintiff Brian Bellville?s expression of concern about stray voltage in 1994. Under MCL
449.12, notice to a partner ?of any matter relating to partnership affairs? and knowledge of a
partner ?acting in the particular matter? operate as ?notice to or knowledge of the partnership,
except in the case of a fraud on the partnership committed by or with the consent of that partner.?

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equipment resulting in continuing harm to their cows does not prevent their negligence claim
from being barred by the statute of limitations because undisputed evidence indicates that the
alleged problems began more than three years before the filing of their complaint. Because of
this, plaintiffs? suggestion that they are not asserting that there was negligence when the
electrical system was originally installed is immaterial.
For the foregoing reasons, we conclude that the trial court erred in denying defendant?s
motion for summary disposition of plaintiffs? negligence claim.

II
Defendant also argues that the trial court erred by denying its motion for summary
disposition of plaintiffs? fraudulent misrepresentation claim. We agree. We review this issue de
novo, Schmalfeldt, supra at 426, and consider the facts in the light most favorable to plaintiffs as
the nonmoving parties. Dressel, supra at 561.
A plaintiff must prove the following elements to establish a prima facie claim of
fraudulent misrepresentation:
(1) the defendant made a material misrepresentation; (2) the representation
was false; (3) when the defendant made the representation, the defendant knew
that it was false, or made it recklessly, without knowledge of its truth or falsity,
and as a positive assertion; (4) the defendant made the representation with the
intention that the plaintiff would act on it; (5) the plaintiff acted in reliance on the
representation; and (6) the plaintiff suffered damage. [Campbell v Sullins, 257
Mich App 179, 195; 667 NW2d 887 (2003) (emphasis added).]
We conclude that defendant was entitled to summary disposition of plaintiffs? fraudulent
misrepresentation claim because plaintiffs failed to show a genuine issue of material fact that
they acted in reliance on any alleged misrepresentation attributable to defendant. Plaintiffs argue
that there was evidence of false representations by defendant in 1994, 1997, and 1998. However,
only allegations of fraudulent misrepresentations during and after December 1998 are within the
scope of the pertinent count of plaintiffs? complaint, which refers to interactions between
plaintiffs and defendant ?since December 1998.? Moreover, even assuming that alleged
misrepresentations that occurred prior to December 1998 are within the scope of plaintiffs?
complaint, each plaintiff averred that ?[n]o testing was done of which we were made aware for
transients, sags, harmonics, swells, or other power quality deficiencies at any time prior to
January 27, 1998? (Affidavit of Brian Bellville, 7/29/02, ¶ 4; and Affidavit of Nancy Bellville,
7/29/02). These statements by plaintiffs that they were not aware of testing for power quality
problems prior to January 27, 1998, means that plaintiffs cannot establish the existence of a
genuine issue of material fact in support of a contention that they acted in reliance on any

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representation by defendant before that date regarding whether there were power quality
problems at the relevant property.3
From our review of the record and plaintiffs? arguments, the only remaining basis for
plaintiffs? fraudulent misrepresentation claim is their assertion that they relied on statements
made to them by defendant or its agents during or after December 1998, regarding whether there
were power quality problems on their property. Importantly, MCR 2.116(G)(4) provides:
A motion under subrule (C)(10) must specifically identify the issues as to
which the moving party believes there is no genuine issue as to any material fact.
When a motion under subrule (C)(10) is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of his or
her pleading, but must, by affidavits or as otherwise provided in this rule, set forth
specific facts showing that there is a genuine issue for trial. If the adverse party
does not so respond, judgment, if appropriate, shall be entered against him or her.
In its brief in support of its motion for summary disposition, defendant specifically
argued that plaintiffs did not cease dairy farming after their alleged experts told them that
defendant had falsely advised them regarding electrical problems at the farm, but rather
continued their dairy farming for 1-1/2 more years, which, defendant contended, belied a claim
that they actually relied on any alleged misrepresentations by defendant. Thus, defendant
specifically identified the issue of whether there was evidence of actual reliance by plaintiffs.
In their response to this motion, however, plaintiffs did not refer to any evidence that they
relied on representations by defendant in continuing their dairy farming during or after
December 1998. Rather, they merely referred to evidence supportive of a conclusion that
defendant or its agents made false representations to plaintiffs with the intent that they rely on
those representations, and evidence that the statements were knowingly false or made recklessly.
Thus, the trial court erred by denying defendant?s motion for summary disposition with regard to
plaintiffs? fraudulent misrepresentation claim because plaintiffs failed to set forth specific facts
showing the existence of evidence that they actually relied on alleged false representations
attributable to defendant. See Karbel v Comerica Bank, 247 Mich App 90, 103-104; 635 NW2d
69 (2001) (concluding that the plaintiff?s proffered evidence failed to raise a factual issue
sufficient to withstand summary disposition).
Reversed and remanded for entry of an order of summary disposition in favor of
defendant as to plaintiffs? claims for negligence and fraudulent misrepresentation. We do not
retain jurisdiction.
/s/ William C. Whitbeck
/s/ Richard Allen Griffin

3 At oral argument, plaintiffs? counsel repeatedly emphasized that plaintiffs were not suing for
?stray voltage? but for ?poor power quality,? only. Defendant?s testing in 1994, 1997, and 1998
was for ?stray voltage.?